Will Contest FAQ
DETAILS ABOUT CONTESTING A WILL IN VIRGINIA
To contest a will in Virginia you need to follow these three steps:
- Confirm that you are an "interested person" by legal definition
- Determine whether or not you have grounds to contest the will
- Submit a bill explaining your interest and reason for challenging the will (Virginia Code section 64-1.88)
When you need help contesting a will or sorting out other disputes regarding estates, wills or trusts, call Obenshain Law Group. We have served a wide variety of clients in contesting wills, defending will contest and ensuring loved one’s property is divided appropriately and fairly after death. If you are involved in a will contest or have questions about the validity of a will, let us help.
On what basis can I contest a will?
You may contest someone’s will for any of the following reasons:
- The will failed to comply with the statutory requirements for it to be valid, often an issue where wills are handwritten (in whole or in part), unsigned, not witnessed or not notarized
- Breach of fiduciary duty, for example where a power of attorney does something in their self-interest instead of in the interest of the person they are supposed to be serving
- Duress (threat of violence, abuse, or other unethical, coercive action)
- Fraud that affected the details of the will
- Someone used undue influence to ensure that the terms of the will benefited them
- The person who made the will can be proven to have been mentally ill, incapacitated, or otherwise lacked the capacity to make a will
Can Stepchildren Contest a Will?
It is possible for stepchildren to contest a will. In order to do so they must have been a named beneficiary of a previous will. However, this doesn’t mean it will be successful if the requirements for a will contest aren’t met.
Is my loved one’s will legitimate?
Typically, in order to be valid, your deceased family member’s will must be dated and signed by the testator (the deceased) and by two or more witnesses who were present and signed at the same time as the testator.
Is a Handwritten Will Legal in Virginia?
Handwritten wills can be considered legitimate and enforceable in Virginia, but there are a few requirements. Firstly it must be wholly handwritten by the testator (the deceased). Secondly, it needs to be signed by the testator. Thirdly, there had to be two witnesses who can testify the testator wrote the will. If any of these are in question, the will can be contested. If you are concerned about the validity of your loved one’s will, call Obenshain Law Group today for help.
Can children born after the will was made still claim a portion of the deceased’s estate?
Time Limit to Contest a Will
The time limit for many will contests is one year from the date a will is probated (filed in the clerk of court’s office), however, there are circumstances that may shorten that time limit. This filing period may also be extended for certain minors and individuals who are incapacitated.
Any interested party can appeal the clerk's probate order within six months of entry if the will has been admitted to probate. Va. Code Ann. § 64.2-445.
If the court admits the will, an interested party, who has not appeared before the court or clerk before, may file a complaint within one year following the entry of the court's order.
A publication proceeding against an interested person has a two-year deadline. Va. Code Ann. § 64.2-448.
A lawyer will also need time to conduct an investigation and to meet with you, so it is important for you to seek assistance and talk to a will contest lawyer as early as possible. While you may have up to a year to contest a will after death, it's important to contact a lawyer as soon as possible to help ensure important deadlines are not missed.
How can I afford to challenge a will?
We will carefully evaluate your case and if we can handle your case we will discuss handling it on a contingency fee basis where we receive a legal fee only if we are successful in securing a verdict or settlement in your favor.
I am Executor of a will that has been challenged; how can I afford to defend the suit?
We will carefully evaluate your case and if we can handle your case we will discuss handling it on an hourly basis, which you may be able to pay as an administration expense – out of the assets of the estate. We are also able to discuss alternative fee arrangements including a contingency fee where we receive a legal fee only if we are successful in defending a will contest or negotiate a favorable settlement on your behalf.
how long can contesting a will take?
Contesting a will in Virginia can take up to one year. For everything you need to know about contesting a will in Virginia, click here.
If you have questions about contesting or defending your loved one’s last will and testament, we can help. Call (540) 318-7360 today to schedule your free, confidential consultation with a Virginia will contest attorney.
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